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decided: June 28, 1971.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1952, No. 287, in case of Commonwealth of Pennsylvania v. Charles C. Clark.


Sanford Kahn, for appellant.

David Richman, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen and Mr. Justice Pomeroy concur in the result. Mr. Justice Jones and Mr. Justice Barbieri dissent. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Roberts

[ 443 Pa. Page 320]

Charles Clark here appeals from the denial of a motion for a discharge or new trial based upon the claim that a seven year delay between indictment and conviction deprived him of his right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. For reasons appearing below, we conclude that the record must be remanded for further proceedings on this claim.

In 1951 appellant was incarcerated in the Indiana State Reformatory, Pendleton, Indiana, serving a 10 to 25 year term of imprisonment for robbery. On October 10th of that year he approached the warden of that institution and voluntarily confessed to the commission of various crimes, including murder, in the Philadelphia area in March of 1951. These admissions were promptly transmitted to the appropriate Philadelphia authorities, and two Philadelphia police detectives soon visited the prison. Although appellant in his original statement to the warden referred to a killing on the outskirts of Philadelphia, he admitted to the detectives that he had murdered one Harry Miller.

On February 4, 1952, appellant was brought to Philadelphia where he gave a signed confession, confirming his earlier admissions. An indictment was returned in due course but without notice to appellant who had by that time been returned to Indiana to serve the balance of his prison term for robbery without so much as a preliminary hearing on the Pennsylvania murder charge.

Appellant was not again released to the custody of Pennsylvania authorities until October 14, 1958, and not finally tried on the Pennsylvania murder charge

[ 443 Pa. Page 321]

    until March 30, 1959. At trial he denied having killed Harry Miller and testified that his statements in 1951 and 1952 to the Indiana warden and to the Philadelphia detectives were with one exception all fabrications designed to secure his transfer away from a cellmate who had threatened to assault him sexually.*fn1 This explanation was apparently not believed by the jury, and appellant was found guilty of murder in the first degree and sentenced to life imprisonment.

No direct appeal was taken from this judgment of sentence, but in 1967 appellant filed a petition for relief pursuant to the Post Conviction Hearing Act*fn2 alleging among other things that he had been denied his right of appeal. This allegation was found to be meritorious, and appellant thereafter filed post-trial motions contending that he had been denied his right to a speedy trial, that his confession had been erroneously admitted at trial, and that the trial court had improperly restricted the cross-examination of one of the Commonwealth's witnesses. The hearing court rejected the latter two contentions but held that an evidentiary hearing was necessary in order to resolve the speedy trial claim and ordered a new trial to enable appellant to raise that issue in a pretrial hearing.

Following the denial of its motion for reconsideration, the Commonwealth appealed the order granting a new trial to this Court on the theory that appellant had waived his right to assert his speedy trial claim by his failure to raise the issue either at trial or in his Post Conviction Hearing Act petition. We rejected this waiver argument but sustained the Commonwealth's

[ 443 Pa. Page 322]

    position that it was inappropriate to order a new trial merely to provide a forum for an evidentiary hearing. Accordingly, the order granting a new trial was vacated and the record remanded for further proceedings on appellant's claim of denial of speedy trial. See Commonwealth v. Clark, 439 Pa. 192, 266 A.2d 741 (1970).

An evidentiary hearing was held on August 25, 1970. Based upon appellant's testimony at that hearing and upon the trial record, the hearing court concluded that the Commonwealth's delay in bringing appellant to trial was not unreasonable under all the circumstances and that the seven year delay between indictment and trial did not in any event prejudice appellant in defending against the charge. Reasoning from these conclusions, the court held that appellant had not been deprived of his Sixth Amendment right to speedy trial and denied his motion for a discharge or new trial. The instant appeal followed.

As the United States Supreme Court has only recently held the Sixth Amendment right to a speedy trial enforceable against the states through the Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988 (1967), many questions essential to the definition and implementation of the speedy trial guarantee are yet to be definitively resolved.*fn3 Because this is a currently emerging area of the law it is helpful to place the issues involved in this appeal in historical perspective.

Prior to Klopfer there existed a split of authority as to whether a state had an affirmative duty to seek

[ 443 Pa. Page 323]

    to bring to trial an accused serving a prison term in another jurisdiction. The large majority of the decided cases held that there was no such duty, and the foremost rationale advanced in support of this traditional majority view rested upon a formalistic conception of sovereignty. In short, it was assumed that the prosecution of one incarcerated in another jurisdiction could be constitutionally deferred, "since the sovereign seeking to try the prisoner did not have the power and authority over the prisoner to bring him to trial. This rule applied even if the custodial sovereign agreed to allow the other sovereign to try their prisoner." Lawrence v. Blackwell, 298 F. Supp. 708, 712 (N.D. Ga. 1969). A "sovereign" it was argued, should not be compelled to request what need not be granted (temporary custody of the accused), thus exposing itself to the possible indignity of refusal. See, e.g., Cooper v. Texas, Tex. , , 400 S.W. 2d 890, 892 (1966); Note, Effective Guaranty of a Speedy Trial for Convicts in ...

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